The due diligence standard: What does it entail for women's rights?

Nijhoff Law Specials

Volumn 73, Issue , 2008, Pages 27-46

  Ertürk, Yakin ^a  

^a KING SAUD UNIVERSITY   (Saudi Arabia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84940867563     PISSN: 09244549     EISSN: None     Source Type: Book Series    
DOI: 10.1163/ej.9789004162938.i-300.13     Document Type: Conference Paper

References (40)

1. Merriam-Webster Dictionary of Law defines due diligence as 'such diligence as a reasonable person under the same circumstances would use' (Merriam-Webster Inc., 1996).
2. This does not represent a commonly held view. Critics of the universal human rights discourse argue that the international women's rights movement by focusing on violence against women has reinforced the victim subject image of women. See Ratna Kapur, 'The Tragedy of Victimization Rhetoric: Resurrecting the "Native" Subject in International/Post-Colonial Feminist Legal Politics', Harvard Human Rights Journal 15(Spring 2002):1-37.
3. Yakin Ertürk, 'The UN Agenda for Women's Rights and Gender Equality', Perceptions: Journal of International Affairs 10, no. 2(2005):91-113;
4. Devaki Jain, Women, Development, and the UN (Bloomington: Indiana University Press, 2005);
5. Margaret Snyder, 'Unlikely Godmother: The UN and the Global Women's Movement', in Global Feminism, ed. Myra Marx Ferree and Aili Mari Tripp, 24-50 (New York: New York University Press, 2006).
6. Jane Connors, 'United Nations Approaches to Crimes of Honour', in 'Honour': Crimes, Paradigms, and Violence against Women, ed. Lynn Welchman and Sara Hossain, 22-41 (London: Zed Books, 2005).
7. Rebecca Cook ed., Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994);
8. Kelly D. Askin and Dorean M. Koenig ed., Women and International Human Rights Law (New York: Transnational Publishers, 1999);
9. Julie Peters and Andrea Wolper ed., Women's Human Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995).
10. Charlotte Bunch, 'Transforming Human Rights from a Feminist Perspective', in Peters and Wolper (1995), ibid., 11-17.
11. Committee on the Elimination of Discrimination against Women, General Recommendation no. 19, Violence against Women (eleventh session, 1992), UN Doc. A/47/38, para. 9.
12. See www.ohchr.org for a description of the mandate with respect to violence against women and the reports of the Special Rapporteur.
13. United Nations, From Beijing to Beijing+5 (New York: United Nations, 2001).
14. Rome Statute of the International Criminal Court, UN Doc. A/CONF/183/9.
15. Yakin Ertürk, 'Identity Politics: Implications for Gender Analysis, Policy and Training', INSTRAW News, no. 27(second semester 1997):9-15. Samuel Huntington articulated these polarisations in his infamous thesis of the 'clash of civilizations'.
16. Samuel Huntington, 'The Clash of Civilizations', Foreign Affairs 72, no. 3 (1993).
17. Since 11 September 2001, national security responses to global terror have become a major threat to the realisation of international human rights norms and this process is highly gendered. See Jan Jindy Pettman, 'Feminist International Relations after 9/11', Brown Journal of World Affairs 10, no. 2(Winter/Spring 2004):85-96.
18. Gender inequality is one of the few common elements of human history cutting across all civilisations. However, particularly with transition to a capitalist mode of production and the struggles of women, deviations from the norm towards greater equality between the sexes has been possible in varying degrees and scopes across the globe. This has required and continues to require major transformations in the culture of many institutions. See Martin Chanock, 'Culture and Human Rights: Orientalising, Occidentalising and Authenticity', in Beyond Rights Talk and Culture Talk, ed. Mahmood Mamdani, 15-36 (New York: St. Martin's Press, 2000).
19. Celina Romany, 'State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law', in Cook (1994), see note 6 above, 85-115. An-Na'im, while agreeing with the need for the state to be proactive in protecting women against abuse by non-state actors, cautions against repudiating the distinction between public/private spheres. According to him, state intervention in private life carries the risk to abuse power to violate rather than protect human rights.
20. Abdullahi A. An-Na'im, 'The Role of "Community Discourse" in Combating "Crimes of Honour": Preliminary Assessment and Prospects', in Welchman and Hossain (2005), see note 5 above, 64-77. It is precisely for this reason that there is merit in exploring the state's due diligence obligation to ensure human rights for all. Human rights standards can enable the state to use its apparatuses to protect citizens against the tyranny of informal intermediary power. Where such political will is lacking the state machinery may become a tool of tyranny itself.
21. Romany (1994), see note 18 above; Christine Chinkin, 'A Critique of the Public/Private Dimensions', European Journal of Int'l Law 10, no. 2(1999):387-395.
22. Mahmood Mamdani ed., Beyond Rights Talk and Culture Talk (New York: St. Martin's Press, 2000).
23. The Ontario Arbitration Act (1991) in Canada allows parties to resolve civil matters between individuals outside the mainstream legal system. The proposal in 2004 by Muslim leaders in Toronto to form arbitration tribunals that would apply Shari'a law to civil disputes including family law matters was met with concern by women's rights organisations. Muslim women's groups in Canada frmly opposed the proposal. The review of the arbitration process submitted by a government-appointed expert in December 2004 concluded that faith-based family law arbitration does not, in itself, constitute an obstacle to the rights of women. The National Association of Women and the Law responded that the report gives preferentiality to religious freedom, demonstrating a clear refusal to assume responsibilities for the protection of marginalised persons within minority groups, women in particular. See Natasha Bakht, 'Arbitration, Religion and Family Law: Private Justice on the Backs of Women', March 2005 at www.nawl.ca/Documents/Arbitration-Final-0305.doc.
24. Yakin Ertürk, 'Considering the Role of Men in Gender Agenda Setting: Conceptual and Policy Issues', Feminist Review, no. 78(2004):3-22.
25. Mission Report to Afghanistan of the Special Rapporteur on violence against women, UN Doc. E/CN.4/2006/61/Add.5, 15 February 2006.
26. The forces associated with religious fundamentalist and conservative political trends in the global order, which pose a threat to the eforts to eradicate violence against women, operate at all levels, ranging from the local to the transnational, and may have access to state power. For example, the refusal in recent years by certain bilateral donors to accord grants to organisations advocating for women's reproductive rights or working with women engaged in the sex sector illustrate the convergence of private and state interests targeting women's rights. Human Rights Watch, 'U. S. Restrictive Policies Undermine Anti-AIDS Eforts: Amicus Curiae Brief Highlights Negative Impact on Public Health Interventions by Anti-prostitution Pledge', 9 November 2005, at http://hrw.org/english/docs/2005/11/09/usdom12006.htm.
27. For further elaboration on the culture-based discourses and women's human rights see my report to the Human Rights Council on Intersection between Culture and Violence against Women, UN Doc. A/HRC/4/34.
28. Saskia Sassen, Globalization and Its Discontents: Essays on the Mobility of People and Money (New York: The New Press, 1998).
29. Rhacel Salazar Parrenas, Servants of Globalization (Palo Alto, CA: Stanford University Press, 2001).
30. Susan Marks and Andrew Clapham, International Human Rights Lexicon (Oxford: Oxford University Press, 2005), 188.
31. Inter-American Court of Human Rights, Velásquez Rodríguez v Honduras, Judgment of 29 July 1988, Series C: Decisions and Judgments, no. 04.
32. 'Deadly Justice', Washington Post, 15 October 2005.
33. Report of the UN Secretary-General, In-Depth Study on All Forms of Violence against Women, UN Doc. A/61/122/Add.1, 6 July 2006.
34. Paulo Frerie, Education for Critical Consciousness (New York: A Continuum Book, 1973).
35. The Italian Penal Code (The Rocco Code of 1931), repealed in 1981, is illustrative. Article 587 of the Rocco Code distinguished killing or injuring for the cause of honour as a separate crime and provided for reduced sentence in cases of adultery. Analysts have explained the existence of Article 587 by the strict gender discriminatory norms to support the demographic policies of the fascist period, which promoted women's reproductive roles and high fertility rates. 'Article 587 effectively gave a "licence to kill" to the heads of families whose "honour" had allegedly been tarnished.' Maria Gabriella Bettiga-Boukerbout, 'Crimes of Honour in the Italian Penal Code', in 'Honour': Crimes, Paradigms, and Violence against Women, ed. Lynn Welchman and Sara Hossain, 235 (London: Zed Books, 2005).
36. Michelle M. Dempsey, 'What Counts as Domestic Violence? A Conceptual Analysis', William and Mary Journal of Women and the Law 12, no. 2 (2006).
37. See www.australiasaysno. gov. au.
38. The full implementation of human rights guarantees in the area of human trafficking along the lines suggested in the Offfice of the High Commissioner for Human Rights (OHCHR) Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN ECOSOC, UN Doc. E/2002/68 Add.1, is an essential process for ensuring that women's human rights remain at the centre of anti-trafficking policies and programmes.
39. United Nations, World Survey on the Role of Women in Development: Globalization, Gender and Work (New York: United Nations, 1999).
40. Montreal Principles on Women's Economic, Social and Cultural Rights, 2002, principle 20.